1505552 (Refugee)

[2015] AATA 3158

1505552 (Refugee) [2015] AATA 3158 (20 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505552

COUNTRY OF REFERENCE:                  Jordan

MEMBER:Antoinette Younes

DATE:20 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 20 July 2015 at 4:04pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had provided incorrect answers in relation to his application for a protection visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 10 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

6. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.   Extracts of the Act relevant to this case are attached to this decision.

7. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notices, being the manner particularised in the notices, and if so, whether the visa should be cancelled.

9. In the s.107 Notices dated  [June] 2014 and  [February] 2015, the delegate advised the applicant of the intention to consider the cancellation of the subclass 866 protection visa.

   Notice of [June] 2014

10. In the Notice, the Department advised the applicant that it would appear that he did not comply with s.101 (incorrect information - application form), and s.103 (bogus document). Specifically, the Notice indicated that [in] October 2009, the applicant lodged an application for a protection visa and that his reasons for claiming to be a refugee were that in the application for a protection visa and in response to the following questions of form 886C of the application, he had stated:

    a.At Question 41 - why did you leave that country? The applicant responded REFER TO THE ATTACHED STATEMENT.

    b.At Question 42 - what do you fear might happen to you if you go back to that country? The applicant responded REFER TO THE ATTACHED STATEMENT.

    c.At Question 43 – who do you think may harm/mistreat you if you go back? The applicant responded REFER TO THE ATTACHED STATEMENT.

    d.At Question 44 – why do you think this would happen to you if you go back? The applicant responded REFER TO THE ATTACHED STATEMENT.

11. The Department attached to the Notice a copy of the statement provided by the applicant in support of the application for a protection visa and referred to in responses to questions 41 to 44.  In that statement, the applicant claimed:

    My name is[name deleted], born in Jordan on[date]. I came to Australia on a visitor visa on [date].

    I have a problem which I cannot talk about in front of anyone.

    I was born a Muslim Sunni, Palestinian and my family is a very conservative family. For a period of time I have not spoken to my family because they want me to go back to Jordan where they can control my life, and I cannot live like that. I want to live my own life.

    After this problem which I cannot discuss with anyone because my case is not accepted in the Middle Eastern countries. But in Australia now one can push you to do something you do not want to do. Also they can accept my opinion.

    When I was [age] years old I travelled to Qatar for work and there met this guy his name was [Mr A] and we lived together for 6 years. We had a serious relationship and we loved each other and this relationship was a secret relationship, until he met someone else and this guy try to separate us on more than one occasion with no luck and Tilly convinced my boyfriend to leave me alone and he left me and went with him.

    I went back to Jordan for one week and I found that my parents are arranging a marriage for me to a girl I did not want to get married because I cannot live that kind of life. I want to live my own life. Then I left my parents and went to Kuwait for work, but life in Kuwait is really hard. And I was really upset because my ex-boyfriend [Mr A] who was in Qatar and he left me for another guy.

    Also I could not go back to Jordan because my parents want me to live their life. I decided to come to Australia where I can do whatever I want without any questions and there is nothing illegal or unacceptable like the Arab Muslim countries.

    I had a few casual relationships in Australia and I wish I can find the right person to live with the rest of my life.

    I cannot go back to Jordan because my parents were threatening me that they would kill me if I do not stop what I am doing in my life or I have to stay away from them so they can forget my as if I did not exist in their life. I want to live my life the way I choose and not the way they want it for me.

12. The delegate further attached a document titled “Psychological Report on [Mr B] and[the applicant]” which was provided by the applicant in support of his application for a protection visa where at .11.2, it is stated  “[Mr B] and [the applicant] have both informed me they have never been married and have never desired to be with a woman and have only been sexually attracted to males.”

13. The Department indicated that:

    a.[In] April 2013, a female by the name of[Ms C][Ms C] – DOB[deleted], lodged a subclass 309 partner (provisional) application with the applicant as the sponsor of that application on the ground that he is her husband.

    b.[In] May 2013, in support of the partner visa application, a document titled “our story” was provided (attached to the Notice). In that document, the applicant stated “I saw [Ms C] the first time in Jordan that was in 2007 when she was visiting one of my relatives. I liked her so much and always dream of her to be my wife. But because of my situation in Jordan in that time I had to leave Jordan and come to Australia for five years I couldn’t go back to Jordan in these five years and see her. In January this year I travelled to Jordan to see my family and see her again, I saw [Ms C] and we spent a good time together till we agreed to get married. We did married [in] February and become happy wife and husband. I come back to Australia to prepare our lovely house to live in, we are now in touch by mobile messages and chatting on the net and phone calls until she become with me in my house.”

    c.In Part G - relationship details Your fiancé or partner’s relationship details of [Ms C] of the 309 visa application lodged [in] April 2013, question 64 asks has your fiance or partner ever been in the same sex or opposite sex de facto relationship with a person other than you? an X was placed in the No box indicating that the fiance or partner had never been in a same-sex relationship.

14. The delegate noted that the above information indicates that when the applicant responded to questions 41, 42, 43, 44, and 45 of Form 886C, the applicant gave incorrect answers. The delegate specified that in response to question 41 (attached statement), the applicant had indicated that he left his country because he is homosexual, that he could not live his life the way he wanted because he would be forced to marry a woman, that he had never desired a woman, and that the information before the delegate indicates that the applicant had returned to Jordan in 2013, that he had subsequently married woman, that he has had strong feelings for the woman since 2007, that the applicant is a heterosexual, and that the information given by the applicant for leaving his country was incorrect.

15. In relation to questions 42, 43 and 44, the delegate noted that the applicant had indicated that his parents had threatened to kill him for his homosexuality, that in 2013 and to support the partner visa application lodged [in] April 2013, the applicant returned to Jordan to visit his family, that the information indicates the applicant was not in fear of being killed by his parents because he returned to Jordan in 2013 to see them, and that the information indicates that he subsequently married a woman shortly after this in February 2013. 

16. In the Notice, the delegate indicated that the applicant had breached section 101(b) of the Act as he had provided incorrect answers on Form 866C and that he had submitted a document titled “Psychological Report on [Mr B] and B[the applicant]” which was provided by the applicant in support of his application for a protection visa where at .11.2, it is stated  “[Mr B] and [the applicant] have both informed me they have never been married and have never desired to be with a woman and have only been sexually attracted to males.” The report contained information in breach of section 103, namely that [in] April 2013, [Ms C] lodged the partner visa application on the basis of the applicant being her partner.

17. In a letter dated 10 July 2014, the applicant responded to the Notice as follows:

    a.He has never provided a focus document or mislead the Department. Even though he was “affected by homosexuality I continue to believe that such conduct is not correct and was not correct in the eye of my God and my parents. But that was my situation and I have not lied in my application at all”.

    b.In the statement he provided in support of the application for a protection visa, he stated that he could not return to Jordan because his parents were threatening him that they would kill him if he would not cease doing what he was doing with his life but this was in 2007.

    c.He provided a statement in 2009, some four years after he had lived in Australia. He started to wake up to himself and met good friends who assisted him in realising the purpose of his life and brought to his attention the moral code from which he was away from many years. He also became aware that his parents would always wish him the best and he felt guilty about having a damaged relationship with his parents. He realised that Almighty God created us with intellect and free will.

    d.After being granted the protection visa, he lived in fear for many years and had suffered a lot because of his homosexuality. He attended counselling with a good Christian friend who encouraged him to pray and to work hard and within a few months, he stopped his Centrelink payments and started working very hard finding a remedy for his “problem”.

    e.When he first completed the application for a protection visa in 2009, he went to a migration agent who advised him to write his story in Arabic because he was not fluent in English. In his statement dated 22 October 2009, he clearly said that he wanted to live his life the way he chose and not the way his parents wanted for him. This was true but now he realises that he wants to live his life the way God wanted him to and not to follow any “immoral” behaviour.

    f.His application for a protection visa was completed by migration agent [name deleted] and his partner visa application was completed by his[relative]. [His relative] completed the questions that never asked the applicant. He now realises that some of the answers are incorrect such as question 63 of form 47SP which asks whether his fiancee or partner had been married to a person other than the applicant and the answer that was ticked was “no” but should have been “yes”. His wife was previously married to a person who divorced her in April 2009 (copy of divorce certificate attached).  [His relative] completed the application which the applicant just signed.

    g.The statement dated 8 May 2013 a copy of which was given to the applicant was written by a friend, in Australia as requested by the Australian Embassy. The applicant did not write the statement in Arabic and he recalls that he saw [Ms C]in 2007 when he visited Jordan. He remembered her wearing jeans and she was “masculine in appearance”.  He is not responsible for this statement and he is prepared to obtain a statutory declaration from the person who wrote the statement. He confirms that since his marriage, he has maintained contact with his wife as her partner. At the time of meeting [Ms C]“she was never to be my future wife and I am not responsible for the contents of the statement of 8/5/2013”. 

    h.In relation to form 866C and in particular questions 41, 42, 43 and 44, at that time he was homosexual and could not be forced to marry a woman. At that time he never desired a woman until 2013 and precisely when he made the decision to visit his family in Jordan to get their forgiveness and the blessing. He was genuinely attracted to his wife when he met her and she was genuinely attracted to him. He was impressed with her “masculine appearance”. They went through the Islamic marriage [in] February 2013 and there were close family witnesses. They had an emotional relationship. He spoke to her about his situation and because of her “masculine” personality, she encouraged him to be strong and gradually they consummated their marriage.

    i.He is not a heterosexual but a homosexual and subsequent to his return from Jordan, he has been receiving counselling because he wants his marriage to work and to try to overcome the homosexual tendencies. His wife is very understanding and patient. He is now proud that he has his parents’ blessing because of his marriage.  From 2012 until now, there have been a lot of changes in his life. Since his return to Australia, he has been supporting his wife financially from June 2013 and she has been supporting him emotionally. His wife is fully-aware of his situation and his former homosexual tendencies.

18. In a further response dated 9 August 2014, the applicant reiterated his statements that:

    a.When he lodged the application for a protection visa, he was homosexual and he could not be forced to marry a woman. He did not indicate that he had strong feelings for [Ms C]since 2007. He had never contacted her or had any relationship with her prior to 2013 when he met her.

    b.At question 55 of form 47SP (partner visa application), he has replied that he met his wife [in] January 2013 and consequently there is no evidence that he had any relationship or contact with his wife in 2007. The application lodged at the Embassy should not “lead the department to take into consideration any information outside the application 47SP”.  The date of marriage and when they met are clearly stated in form 40SP on page 8.  He has not misled the Department and at the time when he lodged an application for a protection visa he was homosexual.

    c.In relation to questions 42, 43, and 44, he confirms that during his time as a homosexual he was threatened by his parents because in Jordan there is what is referred to as a crime of honour. He was originally in fear of being killed by his parents when he completed his application for a protection visa which was in 2009, approximately 4 years ago. At that time, his parents who are committed Muslims were aware of the Islamic prohibition on homosexual acts. Homosexuality is against the moral code and is against Islam. This is what he had said in his application for a protection visa. After four years of prayers, thinking and counselling, he has changed.

    d.He does not take responsibility for the document titled “our story” which was prepared by someone else, although he had signed it. In 2007, he did not desire a woman and he was homosexual at that time. He has not breached the Migration Act and the information contained in his application for a protection visa is correct.

    e.About a year and a half ago and subsequent to him being granted the protection visa, his former partner [Mr B] left him.  He is now working and he does not rely on Centrelink.

19. The applicant provided a certificate of divorce relating to his wife, a certificate of marriage to his wife and a document from [a doctor] in Egypt, dated [July] 2014 stating that the applicant’s wife is “…single not married. By examination hymen is intact…” (folio 62).

20. [In] November 2014, the applicant was interviewed by the Department in relation to the International Treaties Obligations Assessment (ITOA). In essence, during the interview the applicant stated that he would have “too many problems” if he were to return to Jordan and he would not be able to live his life as he wanted to. He claimed that his [brother] has previously threatened him and told him he does not want to see him in Jordan again. The applicant described his brother as a troublemaker who would tell the whole country of the applicant’s sexual orientation. The applicant claimed that during his last visit to Jordan, he was approached by a group of people who told him he should go to Syria to fight.

21. In a letter dated [January] 2015, the Department advised the applicant that the ITOA assessment has been finalised with a finding that non-refoulment obligations are not engaged in his case. 

22. In a letter dated 20 January 2015, the applicant stated that there appears to be a misunderstanding about his situation that he would not be at risk of harm if he were to return to Jordan. He stated that his original claims are genuine and that he was a homosexual but due to counselling, he is changing. He is legally married and when he said that his marriage was consummated it was a statement that his wife had become his wife and that they both stay together for a short period of time. He has provided medical evidence that his wife is still a virgin which should lead the Department understand and accept that he is affected by his homosexuality. The Department does not understand the critical and terrible situation in Jordan as well is his fear of persecution and harm which had been accepted previously by the Department. The department also fail to understand the concept of crime of honour in Jordan and how he would relocate or make a living in Jordan. He has nothing to hide and he has provided substantial evidence relating to the situation in Jordan especially after the “invasion” of thousands of refugees from Syria. He has suffered serious harm from his brother as well as others and the decision that Australia does not have non-refoulment obligations is incorrect because he was accepted as a refugee. He would fight for his rights to the top level and the decision to cancel his visa is unreasonable. As an Australian permanent resident and a taxpayer, he will “deal with the matter further”.

    Notice of [February] 2015

1. The delegate advised that on the basis of the available material, there has been non-compliance with s.101(b) of the Act, providing that a ”non-citizen must fill his or her application form in such a way that…no incorrect answers are given or provided”. In summary, the delegate referred to:

   a.the applicant’s responses to questions 41, 42, 43, 44, and 45, namely, “Refer to attached statement”;

   b.the document titled “Psychological Report on [Mr B] and[the applicant]” which was provided by the applicant in support of his application for a protection visa where at .11.2, it is stated  “[Mr B] and [the applicant] have both informed me they have never been married and have never desired to be with a woman and have only been sexually attracted to males.”;

   c.the partner visa application lodged by [Ms C] sponsored by the applicant on the basis of their marriage;

   d.the document titled “our story” and specifically the comments that the applicant had met [Ms C] when he was in Jordan in 2007 and that he had liked her;

   e.the applicant’s interview with the Department [in] April 2014 during which he was advised of the consequences of providing false or misleading information and noting that the answers that he had provided during the course of the interview about his sexuality and relationship with his wife were in contradiction to the answers that he had provided at questions 41 to 45 form 866C of the protection visa application; and

   f.the applicant returned to Jordan, the country about which he had claimed he could not return and remained for approximately two and a half months.

2. The applicant sent a further letter to the Department dated 17 March 2015 in which he reiterated his earlier statements that he has never provided incorrect information or fraudulent documents. He reiterated that he is a refugee claims were correct.

   The review stage

3. To the Tribunal and in support of the application for review, the applicant provided a copy of the decision record and a report dated [June] 2015 from [a] social worker. In summary, [the social worker] referred to the applicant’s background and the applicant’s current circumstances including his desires and urges to be with men which he has been resisting in an attempt to change his sexuality. She diagnosed the applicant as having major depressive disorder, generalised anxiety, post-traumatic stress disorder, high levels of stress, and suicidal ideation. She expressed her belief that the applicant is “homosexual and he is fighting same sex attraction today as his life is at risk in his home country”.

   DISCUSSIONS & FINDINGS

   Delay in in lodging application for a protection visa and returning to Jordan

4. In the course of the hearing, the applicant confirmed that he originally came to Australia in 2005 on a tourist visa and that he later returned to Jordan and came back to Australia on a second tourist visa [in] June 2007. He stated that he worked in Qatar for about six years from 1999 until 2005. He stated that he is Sunni Muslim of Palestinian ethnicity and that he has f[siblings]  one of whom is an Australian citizen. He stated that when he came to Australia in 2007, his tourist visa was valid for three months but he liked Australia particularly the freedom and he decided to stay. He confirmed that he remained unlawfully and applied for a protection visa in 2009 on the basis of homosexuality.

5. The Tribunal asked the applicant about his claims of homosexuality and the applicant stated that whilst he was in Qatar, he lived with his male partner called [Mr A] from 1999 until 2005 when he applied for a tourist visa. The Tribunal asked the applicant whether he had engaged in homosexual activities whilst he was in Kuwait and the applicant responded by saying that he was involved in casual homosexual activities on 4 to 5 occasions.

6. The Tribunal asked the applicant if and when his family found out that he was homosexual and the applicant stated that in 2005 they “overheard” and suggested that he should marry but he refused. The Tribunal asked him how they overheard and he stated that he did not know how; he said his [brother] is very strict and he told the applicant that he had heard “bad news” about him and he threatened to kill the applicant. The Tribunal is of the view that the applicant’s evidence that his family had ‘overheard’ about his homosexuality, is vague and lacked in details. He was unable to provide a coherent account of how his brother or any other member of his family and discovered his claimed homosexuality. The Tribunal is of the view that in consideration of the evidence as a whole, the inability to provide a coherent account raises doubts about the applicant’s claim.

7. The Tribunal noted that it would appear then that he had come to Australia in 2005 and later in 2007 after he had allegedly been threatened by his brother in 2005. The Tribunal noted that he had applied for the protection visa in 2009, four years after the alleged threats. The Tribunal asked him about the delay in lodging the application for a protection visa in those circumstances and the applicant stated that in 2005, he did not know Australia’s laws and he returned to Jordan. He said he was also concerned about causing problems between his sister and her husband. The Tribunal suggested to the applicant that the apparent delay in lodging the application for a protection visa could raise doubts about his claims of homosexuality. The applicant stated that in 2007, he also did not know immigration laws and his English was not so good. He said that he met someone you’ll explained to him that he could apply for a protection visa on that basis.  It is difficult to accept that a person fearing such claimed harm would wait for years to seek protection.  The Tribunal is thus not convinced or persuaded by the applicant’s explanations.

8. The Tribunal referred to the application for a protection visa, specifically the responses to questions 41 to 45 of form 866C, namely “Refer to the attached statement” which the Tribunal read to the applicant concluding that the applicant was granted the protection visa on the basis of homosexuality. The Tribunal noted that the applicant had returned to Jordan [in] January 2013 and asked him why he had returned to Jordan if he had feared harm on the basis of his homosexuality. The applicant stated that he had been in Australia for about six years and had had no communication with his family apart from [a sibling] who told him that his mother was very tired and wanted to see the applicant. He stated that he was aware of the risk. The Tribunal asked the applicant if prior to 2013, he had engaged in homosexual activities and the applicant stated that he was in a relationship with a male called [Mr B] with whom he lived for one and a half years in[suburb]. He stated that [Mr B] left him to return to Egypt.

9. The Tribunal suggested to the applicant that the fact that the applicant had returned to Jordan in 2013 could raise serious doubts about his claim fear on the basis of homosexuality. The applicant stated that he returned to Jordan after confirmation that no one would harm him. He said that his parents were unwell and they could die so he wanted to see them. He said he was aware of the risk and his [brother] started talking “bad” stating that the applicant would disgrace them. He stated that he stayed at home and his parents pushed him to get married. He got engaged to [Ms C][Ms C] and lived with her for a while.

10. Without intending to sound harsh, whilst it is plausible that the applicant wanted to see his family, it is difficult to accept that he would return in just over two years following the grant of the protection visa and given his claims that he had been in a recent homosexual relationship with[Mr B]. The timing of his return on these circumstances is problematic.  The Tribunal therefore does not find the explanations convincing or particularly persuasive.

11. On the basis of the available information, and in consideration of the evidence as a whole, the Tribunal is satisfied that the fact that the applicant returned to Jordan [in] January 2013 and that there was a substantial delay in the applicant lodging the application for a protection visa raise serious doubts about the applicant’s claims and general credibility.  For those reasons, the Tribunal does not accept that any member of the family had overheard anything about the applicant’s sexuality as claimed, or that any member of his family had made any threats.

    Marriage to [Ms C]

12. The applicant gave evidence that [Ms C] did not live with her former spouse and did not engage in sexual relationships with him. He stated that he first met [Ms C] in 2007 through one of his relatives who lived in the same street. The applicant gave evidence that he has not engaged in sexual activities with [Ms C] because he did not “feel like it” and that he had told her that he was homosexual.

13. The Tribunal asked the applicant to explain why he got married when he has claimed that he was homosexual. The applicant stated that he saw a psychologist in Australia and received counselling. He said the psychologist convinced him to have another path in life. The Tribunal indicated to the applicant that the fact that he married a woman could raise doubts about his claims that he is homosexual. The applicant stated that homosexuality is analogous to drug addiction; he questioned “can’t I change my life?” and stated in Jordan he gave up everything to come to Australia. He said during a celebration someone told his wife that they knew that he was homosexual and they would embarrass him.  The Tribunal is not persuaded.  In consideration of the evidence as a whole, the Tribunal is satisfied that the applicant’s marriage raises serious doubts about his claims of being homosexual.

14. The Tribunal discussed with the applicant the document titled “our story” and the applicant confirmed that it was his signature that appears to be at the bottom of the page. The Tribunal read out the contents of the document. The applicant stated that he did not write the document but a friend who did not know that the applicant is homosexual. He stated that the friend told him that he would write a story in order to “help” with the partner visa application. The applicant stated that he has since asked the friend to write a letter to acknowledge that he had prepared the document but the person has refused.

15. In consideration of the evidence as a whole, the Tribunal is satisfied that whilst it is possible that the document ”our story” was written by someone else other than the applicant given the fact that it is in English, the Tribunal does not accept that the applicant did not know about the exact contents of the document. He did confirm that he signed the document and the Tribunal finds it implausible that the applicant had no idea about the contents of the document. The Tribunal is satisfied that the applicant understood the contents of the document and that this is reflected in his signature. Alternatively, if the Tribunal were to accept the applicant’s explanations that a friend assisted him in drafting the document, on his own evidence the friend wanted to write a story in order to “help” with the partner visa application, that is making untruthful claims in that document. If true, the applicant as the sponsor in the partner visa application clearly would have allowed the provision of false and or misleading information. However in consideration of the evidence as a whole, the Tribunal is satisfied that this latter possibility is not supported by the evidence and that the applicant had provided misleading information in the document titled “our story”, raising serious doubts about the applicant’s claims and general credibility.

16. The Tribunal referred to the applicant’s letter dated 10 July 2014 where he had stated that they gradually consummated their marriage. The applicant stated that they had lived together and had not consummated the marriage but in the eyes of others, they had. He said he loves his wife because she stood by him.  The applicant stated that in 2007 he was not attracted to [Ms C] but in 2013 he saw her on three occasions and became attracted to her but not in love with her.  The Tribunal found the applicant’s evidence about whether or not the marriage was consummated to be unpersuasive.  The Tribunal asked the applicant if he considered himself homosexual and the applicant stated that he is “bisexual” because he has been seen a psychologist. Within moments, the applicant changed his evidence and stated that he considers to be homosexual but he is trying to change. The Tribunal noted the applicant’s confusion and he stated that he has never engaged in sexual activities with a woman.  The Tribunal asked the applicant about his intentions in relation to [Ms C] and he stated that he would like to live with her and that her parents are not aware of his homosexuality.  The Tribunal is satisfied that the applicant gave inconsistent and confused responses when asked about his sexuality raising further doubts about his claims.

    Documents provided by applicant

17. The Tribunal discussed with the applicant the document titled “Psychological Report on [Mr B] and[the applicant]” which was provided by the applicant in support of his application for a protection visa where at .11.2, it is stated “[Mr B] and [the applicant] have both informed me they have never been married and have never desired to be with a woman and have only been sexually attracted to males.” The Tribunal indicated that it would further consider the weight that it would place on the document. The applicant stated that he has applied for the protection visa on the basis of his homosexuality. He said he could have waited until he had been granted his citizenship and would have married in Australia in order to avoid the problems currently associated with his protection visa. The Tribunal is not persuaded by the applicant’s explanations.  Whilst the Tribunal gives some weight to the document titled “Psychological Report on [Mr B] and[the applicant]”, in consideration of the evidence as a whole, the Tribunal is satisfied that the applicant’s credibility is beyond redemption and the report does not outweigh the Tribunal’s concerns.

18. The Tribunal discussed with the applicant the document provided from [a doctor] in Jordan dated [July] 2014 noting that the applicant’s wife is “…. single not married.  By examination hymen is intact…” The Tribunal queried the applicant why the doctor would be saying that [Ms C] is single and not married given that she is claimed to be married to the applicant.  The applicant stated that the doctor would have meant that she had not engaged in sexual intercourse.  The Tribunal asked the applicant how he had obtained this document and he stated that his wife obtained the document. The Tribunal asked the applicant why [the doctor] would be providing such a document and he stated in order to prove that his wife is still a virgin. The Tribunal noted that the document is handwritten and it is difficult to determine its authenticity, but in any event the Tribunal would consider the weight that it would place on the document and whether it corroborates the applicant’s claims. In consideration of the evidence as a whole, given the concerns about the document and on the basis of the available information, the Tribunal is not satisfied that the document contains truthful and or accurate information and consequently the Tribunal does not consider the document to be corroborative of the applicant’s claims specifically that he has not engaged in sexual activities with his wife because he is homosexual.

19. The Tribunal discussed with the applicant the report dated [June] 2015 provided by the [social work] and asked him how often he saw the social worker. The applicant stated that he saw her more than 10 times and had started seeing her about a year ago. The Tribunal asked the applicant when exactly he started seeing the social work and now the applicant stated that it was in September or October 2013. The Tribunal noted that [name deleted] is a social worker and it is odd that a social worker is making clinical findings which are more appropriate for a psychologist or a psychiatrist. The Tribunal noted that [the social worker] has not outlined her skills and/or experience in clinical diagnosis and appears to have relied on the applicant’s reporting of events. The Tribunal indicated that it would consider the report further and the weight that it would place on the report and whether it is corroborative if the applicant’s claims.

20. In consideration of the evidence as a whole and given the credibility concerns about the applicant and the Tribunal’s comments in relation to the report by[the social worker], the Tribunal has decided not to give the report weight.

    Was there non-compliance as described in the s.107 notice?

21. The question before the Tribunal is whether the applicant has provided truthful and accurate information when he applied for the protection visa.  In consideration of the evidence as a whole and for the reasons explained above, the Tribunal is satisfied that the applicant is not a witness of truth. Despite it being obvious in some circumstances that he had provided inconsistent information, the applicant continued to provide what the Tribunal perceived to be inaccurate responses and explanations.

22. The Tribunal appreciates that sexuality is complex and there may be a spectrum in one’s sexual behaviour and preferences. There may also be times of personal uncertainties and confusion about one’s sexual orientation.  The applicant’s claim of homosexuality formed the most fundamental ground for the grant of the protection visa. The applicant’s responses to questions 41-45 of form 866C referring to the attached statement essentially indicating that he is homosexual in a long-term relationship, that he cannot return to Jordan because his parents were threatening him that he would be killed because of what he was doing in his life.   

23. In consideration of the evidence as a whole and given the above conclusions and findings, the Tribunal finds that the applicant was not homosexual when he lodged the application for a protection visa, that he has never been homosexual, that he has never engaged in homosexual activities either overseas or in Australia with anyone, or that the applicant’s family are aware of the applicant being homosexual, or that he was ever been threatened by any member of his family on the basis of the claimed homosexuality, or that when he returned to Jordan in 2013 he feared any harm, or that he fears any harm on the basis of being homosexual, or that [Ms C] is supportive of any homosexual claims that he has made in order to obtain the protection visa, or that through counselling he has found other paths. In essence and for the stated reasons, the Tribunal finds that the applicant lodged the application for a protection visa on the basis of false claims and that the visa was granted on the basis of those false claims.

24. In consideration of the evidence as a whole, the Tribunal therefore finds that the applicant has provided incorrect information in relation to his sexuality and therefore, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notices.

    Should the visa be cancelled?

25. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

26. In exercising this power, the Tribunal must consider the applicant’s response to the s.107 notices about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    The correct information

1. In consideration of the evidence as a whole, given the credibility concerns and on the basis of the available information, the Tribunal is satisfied that at the time of lodgement of the application for a protection visa, the applicant was not in a homosexual relationship with [Mr A] or anyone else, that he was not homosexual, that he did not fear harm in returning to Jordan from any person on the basis of homosexuality.

   The content of the genuine document (if any)

2. The applicant has provided a statement in support of his application for a protection visa claiming homosexuality. He has also provided a report from a social worker as well as a psychologist confirming his claim of homosexuality. For the reasons outlined above, the Tribunal is satisfied that the claim was false.

   Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

3. In consideration of the evidence as a whole, the Tribunal is satisfied that the decision to grant the protection visa was wholly based on the incorrect information provided by the applicant. The Tribunal is not persuaded by the explanations that the applicant has given correct information namely that he is and has been homosexual. The Tribunal is satisfied that the balance of the evidence before it indicates that the applicant got married in 2013 after he was granted the protection visa on the basis of being homosexual. The Tribunal is not satisfied and for the stated reasons, that the applicant through therapy and counselling changed his sexual orientation.

4. In consideration of the evidence as a whole, the Tribunal finds that the applicant provided incorrect information about his sexual orientation in order to obtain protection in Australia. In essence, the Tribunal finds that applicant obtained a protection visa on the basis of incorrect information and as a result of making false claims.

   The circumstances in which the non-compliance occurred

5. Throughout the cancellation process, the applicant has denied the provision of incorrect information and has essentially continued to assert that through counselling, he has attempted to change his sexual orientation. The Tribunal is not persuaded.

6. For the reasons outlined above, the Tribunal has found that the applicant has provided incorrect information. In consideration of the evidence as a whole, the Tribunal is satisfied that the applicant has deliberately and repeatedly provided incorrect and false information. The applicant has had various opportunities to correct the record and concede that he has provided incorrect information, however he has continued to provide incorrect information. In the Tribunal’s view, there are no legitimate reasons for the provision of the incorrect information; the applicant wanted to gain advantage and obtain a protection visa on the basis of false claims.

   The present circumstances of the visa holder

7. The Tribunal indicated to the applicant that even if the Tribunal were to conclude that the grounds for cancellations exist, the Tribunal needed to consider discretionary circumstances. The Tribunal outlined the discretionary circumstances and asked the applicant if he wanted to make any submissions in relation to any of those matters. The applicant stated that he had nothing to say except that he loves Australia and his freedom. He said he had nothing to return to in Jordan.  The applicant stated that if he were to return to Jordan, he has no life there. He said he is telling the truth and that his life is in Australia.

8. The Tribunal asked the applicant about his current circumstances and he stated that for about a month he has been living with his sister who has recently returned to Australia. He stated that he is [working] and has been paying his taxes.  The applicant provided a copy of PAYG payment summary for a period ending 30 June 2014. The Tribunal has carefully considered the applicant’s present circumstances and is satisfied that on balance they do not outweigh his intentional breach of immigration laws.  The Tribunal is satisfied that the applicant continues to mislead and deceive about his sexuality.

   The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

9. The Tribunal notes that the applicant has responded to the Notices and the Tribunal has taken those responses and others into consideration, including the comments that as a homosexual male, he was seeking to change his sexuality through counselling. However when asked by the Tribunal about his current sexuality and as noted above, the applicant’s responses were incoherent and confused but he was still claiming that he is homosexual. The Tribunal is not convinced or persuaded by the applicant’s explanations.

10. For the reasons outlined above, the Tribunal has been satisfied that the applicant continues to mislead by providing incorrect information about his marriage and sexuality. Such conduct cannot be considered favourably and the Tribunal remains to be concerned about the applicant’s misleading conduct. 

    Any other instances of non-compliance by the visa holder known to the Minister

11. There is no evidence before the Tribunal that there has been non-compliance with the obligations in ss.101, 102, 103, 104, 105, or 107(2).

    The time that has elapsed since the non-compliance

12. The applicant was granted the protection visa [in] December 2010, about 4 ½ years ago. He was a sponsor in a partner visa application lodged [in] April 2013. In the circumstances, the Tribunal considers that the timeframe since the non-compliance to be recent and therefore should be given weight.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

13. The Tribunal is not aware of any other breaches of the law since non-compliance.

    Any contribution made by the holder to the community.

14. There is information before the Tribunal that the applicant is [employed] and has been paying his taxes. Whilst paying taxes is a legal obligation and taxes contribute to our community, the Tribunal does not consider this to be a contribution that would, should or could outweigh the non-compliance. 

15. On balance, the Tribunal is satisfied that the applicant’s contributions do not outweigh his intentional breach of immigration laws.

    Other relevant factors

16. Whilst these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’. This policy requires consideration of such matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations. There is no evidence before the Tribunal that any other person would have their visa cancelled pursuant to s.140 of the Act.

17. The Tribunal referred to the ITOA assessment and the conclusions that non-refoulment obligations were not engage in his case. The applicant stated that he was mentally unwell and that his brother was threatening him and told him about the disgrace and stigma associated with his conduct. He stated that fingers were being pointed at him. He stated that he has been away from Jordan for about 18 years and he cannot return. He said he had done nothing wrong and he is comfortable in Australia.

18. In consideration of the evidence as a whole, given the Tribunal’s earlier finding that the applicant is not homosexual, and on the basis of the available information, the Tribunal does not accept that the applicant would be threatened, or spoken to about any disgrace or stigma. Even if the Tribunal were to accept the diagnostic findings of the social worker, the Tribunal does not accept that having those clinical conditions means that there is a real chance or a real risk of significant or serious harm occurring to the applicant on his return to Jordan. Whilst the Tribunal accepts as plausible that the applicant genuinely wants to remain in Australia where he is comfortable, it is however important to keep in mind that the applicant was granted a protection visa because he claimed to have feared persecution or harm if he were to return to Jordan. Being comfortable cannot be equated to persecution or significant or serious harm. It is plausible that as the applicant has been in Australia for 18 years or so, he would encounter difficulties in settling back into Jordan. However the Tribunal is satisfied that those difficulties are no different or no more serious than a person settling into any country.

19. The applicant is [age] years of age and he family in Jordan; the applicant told the Tribunal that his parents and the majority of his siblings remain in Jordan and in the Tribunal’s opinion and given the earlier findings, the Tribunal is satisfied that the applicant would be able to receive the support that he might need to settle back into Jordan. He is also claiming that his marriage is genuine and continuing and consequently he would be able to get support from that relationship, if indeed it is genuine. It is not the Tribunal’s task nor is it necessary in this case to determine whether the partner relationship is genuine and/or continuing. In essence, the Tribunal is satisfied that in case of the applicant’s return to Jordan, he would be able to receive the support that he might need.

20. In consideration of the evidence as a whole, for the reasons outlined earlier, and on the basis of the available information, the Tribunal is satisfied that the applicant would not engage in sexual activities with other males in Jordan (or indeed any other country) on his return. In consideration of the evidence as a whole, the Tribunal is satisfied that the applicant would not engage in sexual activities with other males in Jordan not out of fear of harm but because he is not a homosexual. 

21. For the same reasons, the Tribunal is satisfied that there is not a real chance that the applicant would be subjected to serious harm on his return to Jordan amounting to persecution, on the basis of any Convention ground. The Tribunal therefore finds that the applicant does not have a well-founded fear of persecution.

22. For the same reasons, the Tribunal is satisfied that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Jordan, there is a real risk that the applicant would suffer significant harm on any basis, including but not limited to, sexual preference/orientation or any other basis.

    CONCLUSIONS

23. The Tribunal has found that there has been non-compliance by the applicant with s.101 of the Act.

24. The Tribunal has carefully considered the evidence before it and the matters prescribed in Regulation 2.41. The Tribunal appreciates the significance of the impact that a visa cancellation can have on a visa holder and the Tribunal has considered the applicant’s contribution to the Australian community, however the contribution is not sufficient to outweigh other considerations such as the continued provision of incorrect information and the clear intention to mislead for personal gain.

25. The Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. Accordingly, the Tribunal is satisfied that the visa cancellation is warranted under the circumstances.

26. In essence, the Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

27. The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

    AntoinetteYounes

    
    Senior Member

    ATTACHMENT – Relevant Extracts from the Migration Act 1958:

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)     was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)     stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)     informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)     requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)     visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.